PUBLISHER'S VIEW: Two recent posts relating to the apparent "loss" of a key piece of evidence that could make the difference as to whether Hank Skinner is executed or not raise the important responsibility on the state and its agents to carefully label, track, preserve and protect exhibits from criminal trials in case they are subsequently sought for appeal or exoneration purposes. Among other exhibits, Mr. Skinner has been seeking access for testing for more than a decade to a blood-and sweat-stained windbreaker found near the body of his girlfriend Twila Busby which is apparently now missing. Although I am not in a position to make any judgment as to whether there was impropriety in the disappearance of this key exhibit, I couldn't help thinking of the Charles Smith case in which William Mullins-Johnson's lawyers were desperately seeking the microscopic slides and tissue samples from the autopsy conducted on the body of his niece four and a half year old Valin Johnson in Sault Ste. Marie, Ontario, which had been sent to Smith at the Hospital for Sick Children in Toronto by the local pathologist for an opinion. (He had already served more than a decade of a life sentence in penitentiary). Without these slides and samples Mr. Mullins-Johnson, who had been convicted of first-degree murder would never be able to prove that he had been wrongly convicted. In spite of Smith's repeated denials that he did not have them any longer in his possession, the items were ultimately found in highly suspicious circumstances in Smith's office at the hospital for Sick Children. (Independently tested, they proved that Valin had neither been sexually assaulted or murdered - as Smith and the local pathologist had opined - but had died a natural death, most likely due to choking on her vomit while she slept). Smith's disturbing role in connection with the "missing" exhibits, was the subject of a post which I published on this Blog, on October 26, 2010, under the heading, "William Mullins-Johnson perspective; (15); Maxine Johnson's disturbing first-hand account of locating the missing exhibits; From an early post."
HAROLD LEVY: PUBLISHER: THE CHARLES SMITH BLOG;
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"Maxine Johnson's disturbing first hand account of locating the missing exhibits:
PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on December 18, 2007, ran under the heading, "Maxine Johnson's disturbing first hand account of locating the missing Mullins-Johnson exhibits."
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"Maxine Johnson, who once worked in a secretarial pool serving pathologists at the Hospital for Sick Children, has given disturbing testimony on her discovery of the missing Mullins-Johnson slides.
She told the Goudge Inquiry that she believes that on several occasions key forensic materials were placed on a shelf in Dr. Charles Smith's office at the Hospital for Sick Children in Toronto after the office had already been searched.
(There has been evidence at the Inquiry that Dr. Smith had access to his office during the period that the search was conducted);
By way of context, lawyers for the Association in Defence of the Wrongly Convicted had been seeking the evidence from Mullins-Johnson's first degree murder trial since early 2003, so they could be sent to an independent specialist for analysis in support of his application for a Ministerial Review.
Crown law officers had to enlist the support of the police to locate the materials after Smith, who had been sent them by the local Sault Ste. Marie pathologist, was unable to hand them over.
Without these exhibits Mullins-Johnson would not be able to prove that he had not murdered his 4-year-old niece Valin.
Here is a chronology of Maxine Johnson's efforts to locate the missing exhibits as per her testimony at the Inquiry:
Friday November 26, 2004;
Ms. Johnson is summoned a meeting attended by herself, Deputy Chief Coroner Dr. James Cairns, Dr. Smith, and Dorothy Zwolakowski, an official of the Chief Coroner's Office, to discuss the missing exhibits.
After advising the meeting that she had not seen any exhibits from the Mullins-Johnson case, she was asked to go immediately with Zwolakowski to conduct a search of Smith's office.
Johnson testified that they were able to locate "a couple of (microscopic) slides" that day.
Monday November 29, 2004;
Johnson locates twenty (20) microscopic slides on a shelf in Smith's office which she described as being "fairly messy" that day.
She testified that it didn't take long to find the slides "because Dorothy and I had spent a lot of time the day prior -- the -- of the Friday prior, sorry -- and we 1didn't find them, so I was really happy that all of a sudden, you know, they were there."
MAY 6, 2005;
Johnson is surprised to find an additional ten (10) glass slides and twenty-eight (28) paraffin blocks on a shelf in Smith's office while doing "just another clean up"- she wasn't looking for any of the Mullins-Johnson materials at the time.
the stuff.
She said she located them in a cupboard on the first shelf of a cupboard as seen while entering the office.
Maxine Johnson's testimony raised a troubling question in the mind of lawyer Phillip Campbell, who represents seven unnamed persons at the Inquiry; How could the forensic evidence from the Mullins-Johnson keep showing up in locations that had already been thoroughly searched?
Here is Campbell's cross-examination on the issue - and Johnson's startling reply.
MR. PHILLIP CAMPBELL: Okay. We all
listened to your evidence about find -- beginning your
search on Friday the 29th (sic) of November for the slides
once this had become the focus of everybody's attention
and then finding them on the morning of the 29th.
Again, I think some of us listening weren't
completely clear what your own perception of -- of that
was. You found the slides quickly and easily on the
Monday morning, is that right?
MS. MAXINE JOHNSON: Yes.
MR. PHILLIP CAMPBELL: Was it your own
appreciation of this, at that time, that -- on the Friday,
you had looked in the place where you found them on the
Monday?
MS. MAXINE JOHNSON: Yes.
MR. PHILLIP CAMPBELL: And did you draw
from that the inference that they had been placed in the
position where you found them between the Friday and the
Monday?
MS. MAXINE JOHNSON: Yes, I did because we
did spend a lot of time, and we did look everywhere for
those.
MR. PHILLIP CAMPBELL: Did you -- at the
time having formed that impression -- did you discuss it
with anybody else? With Dorothy or -- or anybody else who
was fam -- aware of this search in progress?
MS. MAXINE JOHNSON: Sure, I told Dorothy
that, you know, I thought it was kind of strange that we had looked, I mean, and we spent a lot of time looking and then all of a sudden --
COMMISSIONER STEPHEN GOUDGE: Did you look
in the same place on Friday --
MS. MAXINE JOHNSON: Oh, yes.
COMMISSIONER STEPHEN GOUDGE: -- that you
found them on Monday?
MS. MAXINE JOHNSON: Yes, we did. I
looked.
COMMISSIONER STEPHEN GOUDGE: Okay.
CONTINUED BY MR. PHILLIP CAMPBELL:
MR. PHILLIP CAMPBELL: And I'm not
completely conversant with this history, but you found a
good deal more related to the case some months later?
MS. MAXINE JOHNSON: Yes.
MR. PHILLIP CAMPBELL: And had you --
wherever you found that, had you looked in that location
on the November 26th and 29th searches?
MS. MAXINE JOHNSON: Yes, we did.
MR. PHILLIP CAMPBELL: And you formed the
same inference that between the end of the November 26th
to 29th search, and your later discovery of this material,
it had been put in the position where you finally found
it?
MS. MAXINE JOHNSON: Yes.
Assuming that this inference is correct - the obvious question is who would have had a motive to keep positioning the forensic materials in a position where they would have been found and turned over to the Chief Coroner's Office.
Smith is an obvious suspect - if Johnson's sworn evidence is to be believed.
He is the last person known to have had the materials and he is aware at this time that that the police have been seeking them.
He must know that there could be serious consequences if prosecutors ever concluded that he had deliberately frustrated a police investigation.
Moreover, there has been evidence before the inquiry that Smith told Deputy Chief Coroner Cairns that he had kept a key exhibit in the Waudby cases at his home - and as reported in a previous Blog, police were discussing the possibility of laying charges against Smith - apparently in connection with that piece of evidence.
On the other hand, not a single witness has testified that they saw Smith place any forensic materials on the shelf - and no witnesses have been called at the Inquiry
to back up Johnson's testimony.
Smith's lawyers did not cross-examine Johnson on any of her testimony;
Dr. Smith will have the chance to offer his side of the story when he takes the witness stand on January 28;
A final point;
The Overview Report on the Mullins-Johnson case notes that Crown lawyer Phillip Downes, prepared a memo to file regarding a telephone call he had with Dr. Smith on December 29th, 2003.
The memo states:
"Spoke by telephone to Dr. Smith at 9:45 a.m. today.
He had requested his assistant to search the archive for the material.
Their first search had proved fruitless.
He thinks samples may not be there.
He will take another look when his assistant returns next week."As the transcript indicates, Johnson did corroborate the information given by Smith to Downes.
MR. ROBERT CENTA: Now, Ms. Johnson, you said earlier that as
of -- from 2001 onward, Dr. Smith often looked to you to
provide secretarial assistance?
MS. MAXINE JOHNSON: Yes, he did.
MR. ROBERT CENTA: And in December 2003,
who would Dr. Smith likely have asked to assist him with
this kind of task?
MS. MAXINE JOHNSON: Myself.
MR. ROBERT CENTA: And do you have any
recollection of Dr. Smith asking you to search the archive
for slides and blocks related from his consultation report
on Valin's case?
MS. MAXINE JOHNSON: No, I do not.""
Although Justice Stephen Goudge did not have the jurisdiction to make civil or criminal findings as head of the public Inquiry sparked by many of Smith's cases, he did not mince words in his assessment of Smith's conduct vis a vis the Mullins-Johnson exhibits, as he ruled:
"The sequence of events is disturbing. Dr. Smith received and ignored request after request for the autopsy materials from a case he had reviewed and in which a man was in prison for first-degree murder. The materials were found in his own office almost 18 months after the first unanswered request. The case raises serious concerns about the storage and retention of autopsy materials and, more important, about Dr. Smith's disregard for the needs of the criminal justice system."
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PUBLISHER'S NOTE:
I am monitoring the aftermath of the Goudge Inquiry. Keep your eye on the Charles Smith Blog for reports on developments.
The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
http://www.thestar.com/topic/charlessmith
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com
Harold Levy: Publisher; The Charles Smith Blog.
